Lufe v R [2018] NZCA 327 (28 August 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA191/2018 [2018] NZCA 327

	BETWEEN	UNALOTO KI POLUTU TONGA LUFE Appellant
	AND	THE QUEEN Respondent

Hearing:	31 July 2018
Court:	Asher, Brewer and Thomas JJ
Counsel:	R Slade and G Vear for Appellant E J Hoskin for Respondent
Judgment:	28 August 2018 at 9.30 am

JUDGMENT OF THE COURT

1. The appeal against sentence is allowed in part.
2. The minimum period of three years is quashed and a minimum period of imprisonment of two years and three months is substituted.

100. The sentence of six years’ imprisonment stands.

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REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] Judge Treston sentenced Mr Lufe to a total of six years’ imprisonment on a charge of injuring with intent to cause grievous bodily harm and two related charges of attempting to pervert the course of justice and breaching release conditions.^[1] The Judge imposed a minimum period of imprisonment of three years. Mr Lufe now appeals his sentence on the ground that six years is manifestly excessive. He appeals also the minimum term of imprisonment. He submits Judge Treston wrongly included in his calculation the sentences imposed on the two related charges.
[2] Our task is to determine whether there is an error in Judge Treston’s sentence such that a different sentence should be imposed. There will be such an error if the sentence is manifestly excessive. There is no contest that Judge Treston erred in his calculation of the minimum term of imprisonment, and we will have to correct that.

Background

[3] At the beginning of his trial, Mr Lufe pleaded guilty to the charges of attempting to pervert the course of justice^[2] and breaching release conditions.^[3] He contested the charge of injuring with intent to cause grievous bodily harm and was convicted by a jury.^[4]
[4] Mr Lufe and the victim were well known to each other. They had what has been called an on-again and off-again relationship. The relationship has been characterised by violence. Mr Lufe has previously been convicted of assaulting the victim.
[5] The attack for which the jury convicted Mr Lufe occurred on 20 February 2017. The victim was six months’ pregnant. There was an argument and Mr Lufe grabbed the victim around the neck with his hands and squeezed her neck tightly, strangling her. He then stopped. Shortly afterwards he strangled her again, causing her to lose consciousness. When the victim regained consciousness, she saw that her face was all purple with pores coming out of her face, her eyes were small, bloodshot and looked like they were popping out.
[6] The charge of breach of release conditions arises because Mr Lufe had been released from prison on 15 August 2016 after serving part of a sentence imposed for violence against the victim, and one of his release conditions was that he not have contact with the victim, directly or indirectly, without the written consent of his probation officer. The purpose of the release condition was to prevent contact between Mr Lufe and the victim and so prevent further offending against her.
[7] The charge of attempting to pervert the course of justice arose because Mr Lufe sent text messages to the victim attempting to persuade her to withdraw her allegations.

Judge Treston’s sentence

[8] Judge Treston calculated the sentence as follows:

• (a) On the charge of injuring with intent to cause grievous bodily harm, he considered the offending to lie at the top end of band one of this Court’s guideline judgment, R v Taueki.^[5] He adopted a starting point of four years’ imprisonment and increased this by six months to take account of Mr Lufe’s previous record of violence. The end sentence was four years and six months’ imprisonment.
• (b) On the charge of attempting to pervert the course of justice, the Judge imposed a term of imprisonment of one year and five months.
• (c) On the charge of breach of release conditions, one month’s imprisonment was imposed.

[9] All of these sentences were imposed cumulatively, making the total of six years’ imprisonment. There were no mitigating factors personal to Mr Lufe which the Judge considered should result in a discount. The Judge said that in reaching the sentences at [8](b)] and (c), he applied a 5 percent discount for the guilty pleas entered.

Discussion

[10] Mr Slade for Mr Lufe does not contest the starting points adopted by Judge Treston. His principal submission is that the cumulative sentence of six years’ imprisonment is manifestly excessive because there was no consideration of the effect of totality on the sentence of imprisonment. Section 85(2) of the Sentencing Act 2002 stipulates that if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[11] In our view, although Judge Treston did not specifically refer to totality, the context of the sentencing notes indicates he was bearing it in mind. However, what matters is whether the final sentence is within the range available to the Judge. In our view, it is within range, and very much towards the lower end of the range.
[12] The charge of injuring with intent to cause grievous bodily harm has a maximum sentence of 10 years’ imprisonment. Taueki’s guidelines refer to charges which have a maximum sentence of 14 years’ imprisonment.^[6] The bands have, therefore, to be scaled down to the extent necessary to reflect the lesser charge.
[13] We note the following aggravating features:

• (a) The extreme and repeated violence of the two strangulations. There is an inherent danger to life associated with such attacks, and the victim’s description of the effects of the attacks on her compels the conclusion that her life was endangered.
• (b) The victim was vulnerable. She was six months’ pregnant. Mr Lufe in his evidence said that on the night of the attack they could not walk far because of her condition.
• (c) The attack occurred in the victim’s home, a place where she is entitled to be secure and safe.

[14] In Taueki, this Court assigned a range of three to six years’ imprisonment for the lowest (Band one) category of offending in this class. In the context of domestic assault, the Court said:^[7]

A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

However, the Court also said Band one is not appropriate for offences of extreme violence or violence which is actually life threatening.^[8]

[15] Mr Slade referred us to two decisions of the High Court, R v Khan and R v Singh, but they do not help.^[9]
[16] Khan was an exceptional case where a married man without previous convictions for violence was sentenced to home detention without opposition from the Crown, and with the strong support of the victim, Mr Khan’s wife. There were real mitigating factors, including a plea of guilty. The Judge adopted a starting point of four years having acknowledged his “real difficulty” in “crafting a sentence which enables me to sentence you to home detention which is the desired outcome”.^[10]
[17] Singh, who also pleaded guilty, assaulted his wife with a weapon causing her to lose consciousness and inflicting bruises and small cuts to the rear of her head. The Judge adopted a starting point of four years’ imprisonment, which was extremely lenient.
[18] Our assessment, guided by Taueki, is that a starting point of five years’ imprisonment or longer could readily be justified. This was a very serious assault towards the top of the scale for a charge of injuring with intent to cause grievous bodily harm. It could well have supported a more serious charge.
[19] There had to be an uplift for Mr Lufe’s record of criminal violence. Mr Lufe has a significant record for violent offending which has resulted in three previous periods of imprisonment. His record includes violent offending against the victim. The six month increase imposed by Judge Treston (12.5 percent) was well within range.
[20] The breach of release conditions has a maximum sentence of 12 months’ imprisonment. In this case, the release conditions were aimed at preventing Mr Lufe from further violent offending against the victim. His breach of the conditions is a serious one, notwithstanding that he was at the victim’s address with her consent. We suspect Judge Treston imposed a one month sentence because he was considering totality. A sentence of four months’ imprisonment would have been justified.
[21] The charge of attempting to pervert the course of justice reflected a direct attempt by Mr Lufe to persuade his victim to accept the violence used against her and to relieve himself from criminal responsibility.
[22] In Maney v R, this Court considered an appeal against a sentence of two years and three months’ imprisonment on a charge of conspiring to pervert the course of justice.^[11] This was also the starting point. Mr Maney was on remand in prison on violence charges when he agreed with his mother (by telephone) that she would approach the victim’s son (the mother’s partner) to get him to persuade his father (the victim) to withdraw his allegations. In the event, no approach was made to the victim.
[23] The Court in Maney reviewed the relevant authorities and concluded that in circumstances where the attempt was neither directly made nor successful, a sentence of two years’ imprisonment was appropriate. The appeal was allowed to that extent.
[24] In this case, the attempt was direct. A sentence of more than two years was justified. Judge Treston’s sentence of one year and five months’ imprisonment was low and, we infer, imposed with an eye on totality.
[25] We note that Mr Slade referred us to the decision of this Court in R v Fekita in support of his argument that, on a totality basis, the charge of attempting to pervert the course of justice should have resulted in the equivalent of an uplift of around six months.^[12] We do not accept the submission. Fekita involved a lead charge of injuring with intent to injure,^[13] which has a maximum sentence of five years’ imprisonment. His two charges of wilfully attempting to obstruct the course of justice arose from letters he wrote to his victim from prison attempting to have her withdraw her complaint. In the District Court, Mr Fekita received concurrent sentences of 18 months on these charges. In dismissing the appeal against sentence, this Court commented that against an available sentence of three years’ imprisonment for the violent offending, an uplift of six months’ imprisonment for the attempts to obstruct the course of justice (and associated breaches of a protection order) “would be entirely appropriate and not offend the totality principle”.^[14] This Court cited an earlier decision of this Court, R v Clutterbuck.^[15] However, against a lesser charge background, and reliance on pre-Maney precedent, Fekita does not alter the view we express at [24].
[26] In our view, considering totality, the final sentence of six years’ imprisonment is towards the lower end of the range available to the Judge. What cannot be avoided is that this was an extreme act of harmful violence inflicted on the very vulnerable complainant, so severe that it caused her, a pregnant mother, to lose consciousness, leaving her with severe disfiguring short-term injuries. We would not have disturbed a sentence of six-and-a-half to seven years’ imprisonment.

Minimum period of imprisonment

[27] Judge Treston imposed a minimum period of imprisonment of one-half of the total sentence of six years’ imprisonment. We agree that a minimum period of imprisonment was appropriate:^[16]

[W]here the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.

[28] In this case, Mr Lufe attacked a woman he had previously attacked, and for which he had recently served a term of imprisonment. Deterrence required emphasis.
[29] We accept the one-half minimum period of imprisonment was appropriate, but it can apply only to the four years and six months’ sentence of imprisonment imposed on the charge of injuring with intent to cause grievous bodily harm. That is because a minimum period of imprisonment can be imposed only on a determinate sentence of imprisonment of more than two years for a particular offence.^[17]

Decision

[30] The appeal against sentence is allowed in part.
[31] The minimum period of three years is quashed and a minimum period of imprisonment of two years and three months is substituted.
[32] The sentence of six years’ imprisonment stands.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Lufe [2018] NZDC 4955.

^[2] Crimes Act 1961, s 117(e); Maximum penalty: seven years’ imprisonment.

^[3] Sentencing Act 2002, s 96(1); Maximum penalty: imprisonment for a term not exceeding one year or a fine not exceeding $2,000.

^[4] Crimes Act, s 189(1); Maximum penalty: 10 years’ imprisonment.

^[5] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[6] Crimes Act, s 188(1).

^[7] R v Taueki, above n 5, at [37(b)].

^[8] At [36].

^[9] R v Khan HC Rotorua CRI-2009-063-509, 13 August 2010; and R v Singh [2015] NZHC 1641.

^[10] R v Khan, above n 9, at [12].

^[11] Maney v R [2018] NZCA 193.

^[12] R v Fekita [2008] NZCA 108.

^[13] Crimes Act, s 189(2).

^[14] R v Fekita, above n 12, at [15].

^[15] R v Clutterbuck CA372/99, 17 November 1999.

^[16] R v Gordon [2009] NZCA 145 at [15]. The statutory power is conferred by s 86 of the Sentencing Act.

^[17] Sentencing Act, s 86(1).